Punjab-Haryana High Court
Rajinder Mohan Kashyap vs Om Parkash Sharma on 8 September, 2004
Equivalent citations: II(2005)DMC561
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. This order dispose of two criminal Misc. petitions bearing Crl. Misc. No. 18077-M of 1999 filed by Rajinder Mohan Kashyap and Crl. Misc. No. 8903-M of 2001 filed by Yogesh Kaushal and Deepshikha, for quashing of the complaint (Annexure P-1) filed by the respondent-Om Parkash Sharma under Sections 498A/406 and 420, Indian Penal Code and the summoning order dated 11.5.1999 (Annexure P-7) passed by the Sub Divisional Judicial Magistrate, Kharar on the aforesaid complaint. However, the facts are taken from Crl. Misc. No. 18077-M of 1999.
2. In this case, respondent-Om Parkash Sharma, father of the girl filed a criminal complaint against seven members of the family of the husband, namely, Anupam Sharda, for the offences under Sections 498A/406 and 420, Indian Penal Code. In the said complaint, all the seven members including the husband have been summoned by the Trial Court for offences under Sections 498A/406 and 420, Indian Penal Code by making the following order:
"I have heard the learned Counsel for the complainant and have also gone through the file of this case. After carefully hearing the learned Counsel for the complainant and after perusal of the file, this Court has come to the conclusion that there is sufficient ground to summon the accused under Sections 420, 406 and 498A, Indian Penal Code. As such, accused Nos. 2, 3 and 4 are ordered to be summoned under Sections 406, 420 and 498A, Indian Penal Code and accused Nos. 1, 5, 6 and 7 are ordered to be summoned under Section 498A, Indian Penal Code on P.F. and copies of complaint for 25.8.99."
3. The three petitioners, who are the maternal uncle (accused No. 7 in the complaint), brother-in-law and sister-in-law (accused Nos. 3 and 4 in the complaint) of the husband, have filed the instant petitions for quashing of the complaint (Annexure P-1) as well as aforesaid summoning order on three grounds. Firstly, that no specific allegations have been levelled against them in the complaint and all the allegations are vague and general in nature. Secondly, that in the complaint, material fact regarding divorce between the husband and the wife and handing over of the dowry articles by the husband to the wife in Australia have been concealed. Thirdly, that all the three petitioners, who are living separately have been falsely implicated in the complaint and the continuation of such a complaint against them is clearly an abuse of the process of the Court.
4. I have heard the arguments of the learned Counsel for the parties and perused the complaint as well as the summoning order and the other materials and documents available on the record, including the reply filed by the complainant.
5. In this case, undisputedly the marriage between the daughter of the complainant and accused No. 1, namely Anupam Sharda was solemnised in the month of January, 1905. At that time, the husband was residing in Australia where he was settled for the last so many years The said marriage was settled by the parents of both the parties on the basis of matrimonial advertisement in the newspaper. No active part was played by either of the petitioners in the settlement and performance of the marriage. After a month of the marriage, the husband went back to Australia. Up to that time, the relations between the husband and wife were cordial Subsequently, the wife also went to Australia on the basis of sponsorship sent by the husband. Thereafter, in the month of September, 1996, a child was born to the couple in Australia. After the birth of the child, it has been alleged that the wife came back to India for some period and subsequently she again went to Australia along with the child. In Australia, a decree for dissolution of marriage was passed on 24.4.1998, a copy of the same has been annexed with the petition as Annexure P-2, This fact has not been disputed. The petitioners have also annexed the list of articles which were delivered to the wife in Australia, which has been duly signed by the complainant on 20.4.1997. This list has also not been disputed. Thereafter, the wife and her father returned to India and the instant complaint has been filed by her father.
6. In the complaint, there are no specific allegations against the petitioner Rajinder Mohan Kashyap (accused No. 7 in the complaint), except in para No. 6 where it has been alleged that during the period from February, 1995 to June, 1995, when the daughter of the complainant resided in the matrimonial home at Una, accused Nos. 2 to 7 used to taunt and harass her telling that she should ask her father to purchase a plot at Mohali for Bimla Devi (mother-in-law). However, neither any specific date nor any time or place of taunting and harassing has been given. Admittedly, the relations between the husband and wife were cordial when they remained in India soon after the marriage. Therefore, these vague allegations against the petitioners do not in spite any confidence. As far as the other two petitioners in Crl. Misc. No. 8903-M of 2.001 are concerned the allegations in the complaint are that when the wife was in Australia, a representation was made by accused Nos. 2, 3 and 4 to the complainant that they were planning to visit Australia and if he wanted to give some gift to his daughter and the child, he could give the same to them. Thereupon, some gift items were handed over to them which they did not deliver to the wife at Australia. There allegations are also vague and no specific date, time and place has been given.
7. In my opinion, not: only the allegations are vague but in the complaint, the complemant has concealed the material facts regarding divorce and handing over the dowry articles by the husband to the wife. With this petition, the petitioner has annexed the order of dissolution of marriage by the Australian Court as well as the list of dowry articles which were handed over by the husband to the wife. In reply, those facts have not been denied. In view of such conduct by the complainant while concealing the material, facts while approaching the Court, the summoning of the petitioners, who are the maternal uncle and married brother-in-law and sister-in-law and are living separately, is wholly unjustified. Generally, it has become a tendency in the matrimonial disputes to implicate all the family members, even sometimes the remote relations, on the vague allegations. The Court while summoning those relations, who are living separately, should carefully analyse the incriminating material against those persons and only those persons should be summoned against whom there are strong and reliable material. Such relations should not be summoned in a casual manner. In this case, perusal of the summoning order indicates that the Trial Court has summoned the petitioners without discussing the specific allegations against those persons. Before issuing the summoning order in a private complaint, the Trial Court is required to apply its mind and then on the basis of the preliminary evidence and the documents on the record, it has to form an opinion that prima facie the person summoned has committed a cognizable offence. In Pepsi Foods Ltd. v. Special Judicial Magistrate, , the Hon'ble Supreme Court, has observed as under:
"... Summoning of an accused in a criminal case is a serious matter. Criminal Law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused."
In my opinion, the summoning of the petitioners in the complaint. (Annexure P-1) is totally unjustified and is clear abuse of the process of the Court. This Court has the inherent power under Section 482 of the Code of Criminal Procedure to quash, the criminal proceedings at the summoning stage, when the same are an abuse of the process of law.
In view of the aforesaid discussion, both the instant petitions are allowed. Accordingly, the complaint dated 3.11.1998 (Annexure P-1) and the summoning order dated 11.5.1999 (Annexure P-7) passed by the Trial Court are quashed qua the petitioners.